Canon Australia Pty Ltd

[2016] FWCA 399

[2016] FWCA 399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Canon Australia Pty Ltd
(AG2015/7898)

CANON AUSTRALIA PTY LTD (TECHNICAL CONSULTANTS) ENTERPRISE AGREEMENT, 2015

Business equipment industry
DEPUTY PRESIDENT BULL	SYDNEY, 27 JANUARY 2016

Application for approval of the Canon Australia Pty Ltd (Technical Consultants) Enterprise Agreement, 2015

[1] An application has been made by Canon Australia Pty Ltd (Australia) Pty Ltd (the applicant/Canon) for the approval of an enterprise agreement known as the Canon Australia Pty Ltd (Technical Consultants) Enterprise Agreement, 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers production employees engaged by the applicants that are engaged in the installation and servicing of business equipment, and who are classified within the Technical Consultants/Production Specialists stream. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational distinctiveness of the proposed coverage.

[3] The Australian Municipal, Administrative, Clerical and Services Union (ASU) was an employee organisation involved in the agreement making process as a bargaining representative. The ASU has filed a statutory declaration (F18) in support of the approval of the Agreement, but disagreed with certain aspects of the employer’s statutory declaration (F17).

[4] In particular, the ASU stated that the applicant did not disclose in its statutory declaration that it initially requested employees vote on the Agreement as per s.181 of the Act on 17 November 2015. The result of that ballot was that 66 employees voted in favour of the Agreement, and 65 employees did not support the approval of the Agreement, with one employee who did not vote.

[5] It is noted that the F17 only requires details relating to the agreement which is subject to approval and information in prior ballots is not required. The submitted F17 states that employees were requested to vote on the Agreement on 11 December 2015. The Agreement proposes to cover 134 employees, with 132 employees who cast a vote, 99 employees supported the approval of the Agreement.

[6] The Fair Work Commission (the Commission) requested the applicant provide a response with respect to the disagreement noted in the ASU’s statutory declaration.

[7] The applicant submitted that a ballot was conducted in respect of a “prior version” of the Agreement. That ballot allowed for employees to vote either in person or by a postal vote. The applicant agreed that the result of the ballot for the “prior version” of the Agreement was that 66 employees voted in favour of the Agreement, and 65 employees did not support the approval of the Agreement, with one invalid vote.

[8] Subsequent to the ballot for the “prior version” of the Agreement, the applicant determined that certain employees who had utilised the postal ballot method had cast their vote prior to the conclusion of the requisite 7 day access period as required under s.180 of the Act.

[9] In light of this, and the applicant’s desire to get better engagement and a larger majority of employees to support the Agreement, the applicant did not pursue the application for the approval of the “prior version” of the Agreement.

[10] Canon then went into further negotiations with the bargaining representatives to address the concerns raised in the “prior” version of the Agreement, which the parties were able to come to an agreement on. The Agreement was then put to another vote which is the Agreement that is the subject of this application. The bargaining representatives and ASU were copied into Canon’s response to the Commission.

Consideration

[11] The Business Equipment Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[12] As specified in the applicant’s statutory declaration, the Agreement in comparison to the Award:

● Does not provide paid rest breaks;

● Reduces the hourly allowance for being on ‘stand by’; and

● Provides no afternoon shift work allowance.

[13] However, the rates of pay under the Agreement provide significantly higher rates of pay when compared to the Award and adequately compensates for the above mentioned reduced entitlements.

Approval

[14] Taking into account the significantly higher rates of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[15] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[16] The ASU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it and supports the approval of the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the ASU.

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 3 February 2016. The nominal expiry date of the Agreement is 3 years from the date of approval.

DEPUTY PRESIDENT

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